For a New Breed of Prosecutors, Justice Sometimes Entails a Second Chance

“I always thought there had to be some sweet spot between 15 months and forever.”

In 2009, Washington Governor Chris Gregoire received an unusual request. Seattle District Attorney Dan Satterberg encouraged her to grant the clemency application of Gerald Hankerson, who had spent more than two decades in prison for aggravated murder.

“I thought he was overcharged,” said Satterberg. “He was an accomplice. He always said, ‘I didn’t plan on the death of [the victim]; I didn’t know he had a knife.’”

Pardons and clemency are two of the most powerful tools available to state or federal officials seeking to right an injustice. Yet successful petitions for either form of relief are almost as rare as the prosecutors who recommend them. Fourteen states grant “frequent and regular” pardons to more than 30 percent of applicants, according to the Restoration of Rights Project, while 19 states have granted few or no pardons in the last 20 years. (The clemency patterns of the remaining states are classified as “rare” or “infrequent/uneven.”)

Illinois offers one example. Republican Governor Bruce Rauner announced in December 2016 that he would prioritize clearing the state’s extensive backlog of clemency applications. He approved only three percent of the 2,333 petitions he reviewed. One of the 79 pardons applications he granted had been waiting for review since 2003. (His predecessor, Governor Pat Quinn, approved 36 percent of the petitions he reviewed while in office.) Clemency rates at the federal level are also notoriously low.

To date, Satterberg has advocated for clemency for 17 prisoners, most of whom were sentenced after Washington became the first state in the country to enact a “three strikes law” in 1993. Prior to the state legislature’s enactment of this law, a third felony conviction carried a minimum prison sentence of 15 to 20 months. After, a third conviction all but guaranteed a defendant would die in prison.

“I always thought there had to be some sweet spot between 15 months and forever,” Satterberg explained to The Appeal.

All 17 individuals whose release Satterberg recommended had their petitions granted — a strong reminder of the influence and power prosecutors wield.

“Any time a prosecutor endorses clemency, that’s a pretty persuasive argument for me,” former Governor Gregoire told The Appeal. “Prosecutors and defense counsel can grant you a whole lot more perspective on the case, the individual, and the circumstances [of their offense] than the record alone would tell you.”

Satterberg believes he can effectively assess an individual’s ability to safely return to society by looking beyond their conviction. Hankerson won Satterberg’s support because of his extraordinary record while incarcerated. After earning his GED in prison, he went on to lead the Black Prison Caucus and the Concerned Lifers Organization. Today, Hankerson is the President of the Seattle chapter of the NAACP.

Of the 17 petitioners whose release Satterberg supported, only one has reoffended — David Conyers, who was re-arrested and charged with multiple counts of second-degree robbery within two years. Satterberg calls Conyer’s case “a spectacular failure,” noting that many criticized his decision, demanding, “What are you doing? You had him for life.” But he doesn’t intend to back away from supporting meritorious clemency petitions.

“There’s always a risk when you go to bat for somebody, but the only way to avoid that is to always seek the maximum sentence every time — and that’s not really justice either,” says Satterberg. “We’re not holding back just because one guy didn’t take advantage of this extraordinary opportunity.”

Satterberg is not alone in envisioning his role as more expansive than just securing the most severe punishment possible against defendants. He is part of a small but growing number of prosecutors who are rethinking what it means to deliver justice to the communities they’re elected to serve.

“There’s a new breed of prosecutors that see their jobs very differently, and believe success isn’t defined by how many cases they indict, or how long sentences are, but whether they’ve made their community safer and healthier,” says Miriam Krinsky, a former federal prosecutor and founder of Fair and Just Prosecution, a nonprofit organization that supports and provides technical assistance to reform-focused DAs.

For example, Albany County DA David Soares’ “Clean Slate” initiative “aims to reverse engineer the flow of young adults away from traditional criminal justice system” by, among other things, addressing how hard it can be for them to re-enter society after serving a prison sentence. His initiative includes an expungement program that allows “non-violent or low-level offenders who have shown positive rehabilitation” to apply to have their criminal records sealed.

Wyandotte County, Kansas, District Attorney Mark Dupree is another member of this new cohort. Dupree, the state’s first black DA, was raised in a Kansas City neighborhood known for high crime rates.

“Growing up, I never saw a police officer unless they were arresting someone or a prosecutor unless they were in our church looking for a witness to help prosecute someone,” Dupree tells The Appeal.

Dupree, who was elected in 2016, plans to prioritize alternatives to prison programs, such as drug and mental health courts and probation. And Dupree emphasizes that prosecutors must assess each case individually, looking beyond a person’s crime to assess his or her life circumstances holistically. He also requires every prosecutor in his office to speak at local schools and to regularly hold community forums. Dupree hopes that bringing prosecutors and community members together in such forums will soften the views of both sides toward one another, and thus increase overall public safety.

“When you see the police on a consistent basis arresting people and destroying families, you become numb and annoyed with the justice system,” says Dupree. “I’m trying to give knowledge and understanding that the justice system is here to serve and protect you.”

Like Satterberg, Dupree conceives of his role as more expansive and complex than just slapping all defendants with the longest possible sentence.

“Everybody makes mistakes, and some mistakes are seen faster and heard louder than other people’s mistakes,” says Dupree. “But we should never allow ourselves to get caught up in the hype and forget the focus of justice. Sometimes justice requires a second chance.”